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© Canadian Judicial CouncilCatalogue Number JU11-4/2004E-PDFISBN 0-662-38118-1

Available from:Canadian Judicial CouncilOttawa, OntarioK1A 0W8(613) 998-5182(613) 998-8889 (facsimile)and at: www.cjc-ccm.gc.ca

forewordThe ability of Canada’s legal system to function effectively and todeliver the kind of justice that Canadians need and deserve dependsin large part on the ethical standards of our judges.

The Canadian Judicial Council has a central concern in this matter.The adoption of a widely accepted ethical frame of reference helpsthe Council fulfill its responsibilities and ensures that judges and thepublic alike are aware of the principles by which judges should beguided in their personal and professional lives.

Since its creation in 1971, the Council has supported the judiciary in a positive way with tools that will help to improve the delivery ofjustice in this country.The publication in 1998 of Ethical Principlesfor Judges constitutes a valuable achievement in this regard.

We owe a continuing debt of gratitude to the working committeethat the Council established in 1994 and to the many experts whocollaborated to give Canadian judges an essential tool for the deliveryof justice in this country.The Canadian Judicial Council is pleased to renew its endorsement of the high standards of conduct that areexpressed in these principles.

The Right Honourable Beverley McLachlinChief Justice of Canada

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Contents1 Purpose ...................................................................................3

Statement and Principles ...........................................................3Commentary ............................................................................4

2 Judicial Independence ...........................................................7Statement and Principles ...........................................................7Commentary ............................................................................8

3 Integrity ................................................................................13Statement and Principles .........................................................13Commentary...........................................................................14

4 Diligence...............................................................................17Statement and Principles .........................................................17Commentary...........................................................................18

5 Equality .................................................................................23Statement and Principles .........................................................23Commentary...........................................................................24

6 Impartiality...........................................................................27Statement and Principles .........................................................27Commentary

A. General ......................................................................30B Judicial Demeanour....................................................33C. Civic and Charitable Activity......................................33D. Political Activity .........................................................39E. Conflicts of Interest ....................................................44

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1. Purpose

Statement The purpose of this document is to provide ethicalguidance for federally appointed judges.

Principles:

1. The Statements, Principles and Commentaries describe the very high standards toward which all judges strive.They areprinciples of reason to be applied in light of all of the relevantcircumstances and consistently with the requirements of judicialindependence and the law. Setting out the very best in theseStatements, Principles and Commentaries does not precludereasonable disagreements about their application or imply thatdepartures from them warrant disapproval.

2. The Statements, Principles and Commentaries are advisory in nature.Their goals are to assist judges with the difficult ethical and professional issues which confront them and to assist members of the public to better understand the judicial role.They are not and shall not be used as a code or a list ofprohibited behaviours.They do not set out standards definingjudicial misconduct.

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3. An independent judiciary is the right of every Canadian.A judge must be and be seen to be free to decide honestly andimpartially on the basis of the law and the evidence, withoutexternal pressure or influence and without fear of interferencefrom anyone. Nothing in these Statements, Principles andCommentaries can, or is intended to limit or restrict judicialindependence in any manner.To do so would be to deny the very thing this document seeks to further: the rights ofeveryone to equal and impartial justice administered by fair and independent judges.As indicated in the chapter on JudicialIndependence, judges have the duty to uphold and defendjudicial independence, not as a privilege of judicial office but as the constitutionally guaranteed right of everyone to have their disputes heard and decided by impartial judges.

Commentary:

1. These Statements, Principles and Commentaries are the latest in a series of Canadian efforts to provide guidance to judges on ethical and professional questions and to better informthe public about the high ideals which judges embrace andtoward which they strive.They build upon the earlier work of the Hon. J.O.Wilson in A Book for Judges published in 1980, the Rt. Hon. Gerald Fauteux in Le livre du magistrat also published in 1980, the Canadian Judicial Council’s Commentaries on JudicialConduct published in 1991 and Professor Beverley Smith’s text,Professional Conduct for Lawyers and Judges (1998).While drawingheavily on these invaluable resources, the present publication is by far the most comprehensive treatment of the subject to date in Canada. But it cannot provide exhaustive coverage of themyriad issues that arise in practice.The sources just mentioned,as well as those referred to in the next Commentary, willcontinue to be of assistance to Canadian judges.

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2. As the references throughout the text indicate, a wide varietyof sources have been consulted in the process of preparing thisdocument.These include not only Canadian sources but also the Code of Judicial Conduct applying to the United StatesFederal judiciary, the American Bar Association’s Model Code of Judicial Conduct (1990) as well as scholarly writing and rulingsconcerning judicial conduct in Canada, the United Kingdom,Australia and the United States.Of particular note are J.B.Thomas,Judicial Ethics in Australia (2d, 1997), J. Shaman et al, Judicial Conductand Ethics (2d, 1995) and S. Shetreet, Judges on Trial (1976).Whileall of these sources are helpful, this document is uniquely thework of Canadian judges.The process which resulted in theseStatements, Principles and Commentaries was carried forward by a Working Committee representative of both the CanadianJudicial Council and the Canadian Judges Conference. Anextensive process of consultation within the judiciary and beyondensured that these Statements, Principles and Commentaries havebeen the subject of painstaking examination and vigorous debate.The intention is that Canadian judges will accept these Statements,Principles and Commentaries as reflective of their high ethicalaspirations and that they will find them worthy of respect anddeserving of careful consideration when facing any of the issuesaddressed in them.

3. A document of this nature can never be viewed as the “finalword” on such an important and complex subject. Publication of these Statements, Principles and Commentaries coincides withthe establishment of an Advisory Committee of Judges to whichspecific questions may be submitted by judges and which willrespond with advisory opinions.This process will contribute to ongoing review and elaboration of the subjects dealt with inthe Principles as well as introduce new issues that they do notaddress. More importantly, the Advisory Committee will ensurethat help is readily available to judges looking for guidance.

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2. JudicialIndependence

Statement:

An independent judiciary is indispensable to impartial justice under law. Judges should,therefore, uphold and exemplify judicialindependence in both its individual andinstitutional aspects.

Principles:

1. Judges must exercise their judicial functions independently and free of extraneous influence.

2. Judges must firmly reject any attempt to influence theirdecisions in any matter before the Court outside the properprocess of the Court.

3. Judges should encourage and uphold arrangements andsafeguards to maintain and enhance the institutional andoperational independence of the judiciary.

4. Judges should exhibit and promote high standards of judicial conduct so as to reinforce public confidence which is the cornerstone of judicial independence.

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Commentary:

1. Judicial independence is not the private right of judges but thefoundation of judicial impartiality and a constitutional right of allCanadians. Independence of the judiciary refers to the necessaryindividual and collective or institutional independence requiredfor impartial decisions and decision making.1 Judicial independencethus characterizes both a state of mind and a set of institutionaland operational arrangements.The former is concerned with thejudge’s impartiality in fact; the latter with defining the relationshipsbetween the judiciary and others, particularly the other branchesof government, so as to assure both the reality and the appearanceof independence and impartiality.The Statement and Principlesdeal with judges’ ethical obligations as regards their individual andcollective independence.They do not deal with the many legalissues relating to judicial independence.

2. In Valente v.The Queen, LeDain, J. noted that “...judicialindependence involves both individual and institutionalrelationships: the individual independence of a judge, as reflected in such matters as security of tenure and the institutionalindependence of the court or tribunal over which he or she presides, as reflected in its institutional or administrativerelationships to the executive and legislative branches ofgovernment.”2 He concluded that “...judicial independence is a status or relationship resting on objective conditions orguarantees as well as a state of mind or attitude in the actualexercise of judicial functions....”3 The objective conditions andguarantees include, for example, security of tenure, security ofremuneration and immunity from civil liability for judicial acts.

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1 S. Shetreet, Judges on Trial, (1976) (hereafter “Shetreet”) at 17.2 [1985] 2 S.C.R. 673 at 687.3 Ibid. at 689.

3. The first qualification of a judge is the ability to makeindependent and impartial decisions.The subject of judicialimpartiality is treated in detail in chapter 6. However, judicialindependence is not only a matter of appropriate external andoperational arrangements. It is also a matter of independent andimpartial decision making by each and every judge.The judge’sduty is to apply the law as he or she understands it without fearor favour and without regard to whether the decision is popularor not.This is a cornerstone of the rule of law. Judges individuallyand collectively should protect, encourage and defend judicialindependence.

4. Judges must, of course, reject improper attempts by litigants,politicians, officials or others to influence their decisions.Theymust also take care that communications with such persons thatjudges may initiate could not raise reasonable concerns abouttheir independence.As the Honourable J.O.Wilson put it in A Book for Judges:

It may be safely assumed that every judge will know that [attempts to influence a court] must only be madepublicly in a court room by advocates or litigants. Butexperience has shown that other persons are unaware of or deliberately disregard this elementary rule, and it is likely that any judge will, in the course of time,be subjected to ex parte efforts by litigants or others to influence his decisions in matters under litigation before him.

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Regardless of the source, ministerial, journalistic or other,all such efforts must, of course, be firmly rejected.Thisrule is so elementary that it requires no further exposition.4

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4 J.O.Wilson, A Book for Judges (1980) (hereafter “Wilson”) at 54-55.

5. Given the independence accorded judges, they share acollective responsibility to promote high standards of conduct.The rule of law and the independence of the judiciary dependprimarily upon public confidence. Lapses and questionableconduct by judges tend to erode that confidence.As ProfessorNolan points out, judicial independence and judicial ethics have a symbiotic relationship.5 Public acceptance of and support forcourt decisions depends upon public confidence in the integrityand independence of the bench.This, in turn, depends upon thejudiciary upholding high standards of conduct.

[O]nly by maintaining high standards of conduct will the judiciary (1) continue to warrant the publicconfidence on which deference to judicial rulingsdepends, and (2) be able to exercise its ownindependence in its judgements and rulings.6

In short, judges should demonstrate and promote high standards of judicial conduct as one element of assuring the independence of the judiciary.

6. Judges should be vigilant with respect to any attempts toundermine their institutional or operational independence.While care must be taken not to risk trivializing judicial independenceby invoking it indiscriminately in opposition to every proposedchange in the institutional arrangements affecting the judiciary,judges should be staunch defenders of their own independence.Although the form and nature of the defence must be carefullyconsidered, the propriety in principle of such defence cannot be questioned.7

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5 B. Nolan,“The Role of Judicial Ethics in the Discipline and Removal ofFederal Judges,” in Research Papers of the National Commission on JudicialDiscipline & Removal Volume I (1993), pp. 867-912, at 874.

6 Ibid. at 875.7 These issues are addressed further in chapter 6, infra.

7. Judges should also recognize that not everyone is familiar with these concepts and their impact on judicial responsibilities.Public education with respect to the judiciary and judicialindependence thus becomes an important function, formisunderstanding can undermine public confidence in thejudiciary.There is, for example, a danger of misperception aboutthe nature of the relationship between the judiciary and theexecutive, particularly given the Attorney General’s dual roles as the cabinet minister responsible for the administration ofjustice and as the government’s lawyer.The public may not get a completely balanced view of the principle of judicialindependence from the media which may portray it incorrectly as protecting judges from review of and public debate concerningtheir actions. Judges, therefore, should take advantage of appropriateopportunities to help the public understand the fundamentalimportance of judicial independence, in view of the public’s own interest.8

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8 The phrase “appropriate opportunities” should remind judges that thecircumstances of such public interventions must be considered carefully given the constraints of the judicial role. Some of the relevant considerationsare discussed more fully in chapter 6,“Impartiality”; see also, for example,J.B.Thomas, Judicial Ethics in Australia (2d, 1997) (hereafter “Thomas”) at 106-111.

8. Judges are asked frequently to serve as inquiry commissioners.In considering such a request, a judge should think carefullyabout the implications for judicial independence of accepting the appointment.There are examples of Judicial Commissionersbecoming embroiled in public controversy and being criticizedand embarrassed by the very governments which appointedthem.The terms of reference and other conditions such as timeand resources should be examined carefully so as to assess theircompatibility with the judicial function.9 The Position of theCanadian Judicial Council on the Appointment of FederallyAppointed Judges to Commissions of Inquiry, approved in March 1998, provides useful guidance in this area.

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9 It is interesting to note that the Australian High Court has ruled that, onseparation of powers grounds, there are strict limits in law on the nature of commissions to which judges may be appointed: Wilson v. Minister forAboriginal and Torres Strait Islander Affairs (1996) 70 A.L.J.R. 743; Kable v. D.P.P.(1996) 70 A.L.J.R. 814; see also R. MacGregor Dawson, The Government of Canada (3d) at 482:“There would seem to be little purpose in takingelaborate care to separate the judge from politics and to render him quiteindependent of the executive, and then placing him in a position as a RoyalCommissioner where his impartiality may be attacked and his findings — nomatter how correct and judicial they may be — are liable to be interpreted as favouring one political party at the expense of the other. For many of theinquiries or boards place the judge in a position where he cannot escapecontroversy: ...It has been proved time and again that in many of these casesthe judge loses in dignity and reputation, and his future is appreciably lessenedthereby. Moreover, if the judge remains away from his regular duties for verylong periods, he is apt to lose his sense of balance and detachment; and hefinds that the task of getting back to normal and of adjusting his outlook andhabits of mind to purely judicial work is by no means easy.”

3. Integrity

Statement:Judges should strive to conduct themselves withintegrity so as to sustain and enhance publicconfidence in the judiciary.

Principles:

1. Judges should make every effort to ensure that their conduct is above reproach in the view of reasonable, fair minded andinformed persons.

2. Judges, in addition to observing this high standard personally,should encourage and support its observance by their judicialcolleagues.

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Commentary:

1. Public confidence in and respect for the judiciary are essentialto an effective judicial system and, ultimately, to democracyfounded on the rule of law. Many factors, including unfair oruninformed criticism, or simple misunderstanding of the judicialrole, can adversely influence public confidence in and respect forthe judiciary.Another factor which is capable of underminingpublic respect and confidence is any conduct of judges, in and outof court, demonstrating a lack of integrity. Judges should, therefore,strive to conduct themselves in a way that will sustain andcontribute to public respect and confidence in their integrity,impartiality and good judgment.The Canadian judiciary has astrong and honourable tradition in this area which serves as asound foundation for appropriate judicial conduct.

2. While the ideal of integrity is easy to state in general terms,it is much more difficult and perhaps even unwise to be morespecific.There can be few absolutes since the effect of conduct on the perception of the community depends on communitystandards that may vary according to place and time.

3. As one commentator put it, the key issue about a judge’sconduct must be how it “...reflects upon the central componentsof the judge’s ability to do the job.”10 This requires considerationof first, how particular conduct would be perceived by reasonable,fair minded and informed members of the community andsecond, whether that perception is likely to lessen respect for thejudge or the judiciary as a whole. If conduct is likely to diminishrespect in the minds of such persons, the conduct should beavoided.As Shaman put it,“...the ultimate standard for judicial

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10 J. Shaman et al., Judicial Conduct and Ethics (2d, 1995) (hereafter “Shaman”) at 335.

conduct must be conduct which constantly reaffirms fitness forthe high responsibilities of judicial office.”11 The judge shouldexhibit respect for the law, integrity in his or her private dealingsand generally avoid the appearance of impropriety.

4. Judges, of course, have private lives and should enjoy, as much as possible, the rights and freedoms of citizens generally.Moreover, an out of touch judge is less likely to be effective.Neither the judge’s personal development nor the public interestis well served if judges are unduly isolated from the communitiesthey serve. Legal standards frequently call for the application ofthe reasonable person test. Judicial fact-finding, an important partof a judge’s work, calls for the evaluation of evidence in light ofcommon sense and experience.Therefore, judges should, to theextent consistent with their special role, remain closely in touchwith the public.These issues are discussed more fully in the“Impartiality” chapter, particularly section C thereof.

5. A judge’s conduct, both in and out of court, is bound to be thesubject of public scrutiny and comment. Judges must thereforeaccept some restrictions on their activities — even activities thatwould not elicit adverse notice if carried out by other membersof the community. Judges need to strike a delicate balancebetween the requirements of judicial office and the legitimatedemands of the judge’s personal life, development and family.

6. In addition to judges’ observing high standards of conductpersonally they should also encourage and support their judicialcolleagues to do the same as questionable conduct by one judgereflects on the judiciary as a whole.

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11 Ibid. at 312.

7. Judges also have opportunities to be aware of the conduct of their judicial colleagues. If a judge is aware of evidence which, in the judge’s view, is reliable and indicates a stronglikelihood of unprofessional conduct by another judge, seriousconsideration should be given as to how best to ensure thatappropriate action is taken having regard to the public interest in the due administration of justice.This may involve counselling,making inquiries of colleagues, or informing the chief justice or associate chief justice of the court.

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4. Diligence

Statement: Judges should be diligent in the performance of their judicial duties.

Principles:

1. Judges should devote their professional activity to judicialduties broadly defined, which include not only presiding in court and making decisions, but other judicial tasks essential to the court’s operation.

2. Judges should take reasonable steps to maintain and enhancethe knowledge, skills and personal qualities necessary for judicial office.

3. Judges should endeavour to perform all judicial duties,including the delivery of reserved judgments, with reasonablepromptness.

4. Judges should not engage in conduct incompatible with the diligent discharge of judicial duties or condone such conductin colleagues.

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Commentary:

1. Socrates counselled judges to hear courteously, answer wisely,consider soberly and to decide impartially.These judicial virtuesare all aspects of judicial diligence. It is appropriate to add toSocrates’ list the virtue of acting expeditiously, but diligence is not primarily concerned with expedition. Diligence, in the broadsense, is concerned with carrying out judicial duties with skill,care and attention, as well as with reasonable promptness.

2. Section 55 of the Judges Act (which applies to federallyappointed judges) provides that judges must devote themselves to judicial duties.12 Subject to the limitations imposed by theJudges Act and the judicial role, judges are free to participate inother activities that do not detract from the performance ofjudicial duties. In short, the work of the judge’s court comes first.

3. While judges should exhibit diligence in the performance of their judicial duties, their ability to do so will depend on the burden of work, the adequacy of resources including staff,technical assistance and time for research, deliberation, writingand other judicial duties apart from sitting in court.The importanceof the judge’s responsibility to his or her family is also recognized.Judges should have sufficient vacation and leisure time to permitthe maintenance of physical and mental wellness and reasonableopportunities to enhance the skill and knowledge necessary foreffective judging.

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12 Judges Act, R.S.C. 1985, c.J-1, s.55.The text of the section is as follows:

55. No judge shall, either directly or indirectly, for himself or others, engagein any occupation or business other than his judicial duties, but every judgeshall devote himself exclusively to those judicial duties.

4. As mentioned in Commentary 8 of the “Judicial Independence”chapter, judges are sometimes called upon by governments toundertake tasks which take them away from the regular work of their courts. Service on royal commissions of inquiry is oneexample.A judge should not accept such an appointment withoutconsulting with his or her chief justice to ensure that acceptanceof the appointment will not unduly interfere with the effectivefunctioning of the court or unduly burden its other members.The position of the Canadian Judicial Council, approved at its March 1998 mid-year meeting, provides useful guidance in this area.

5. As long ago as Magna Carta, it was recognized that judgesshould have a good knowledge of the law.13 This knowledgeextends not only to substantive and procedural law, but to the real life impact of law.As one scholar put it, law is not just what it says; law is what it does.14 Sustained efforts to maintainand enhance the knowledge, skills and attitudes necessary foreffective judging are important elements of judicial diligence.This involves participation in continuing education programs as well as private study.15

6. It is useful to consider the subject of judicial diligence underthree headings:Adjudicative Duties,Administrative and OtherOut of Court Duties, and Contributions to the Administration of Justice Generally.

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13 The reference is to Article 45 of Magna Carta:“We will not make any justices,sheriffs, or bailiffs, but of such as know the law of the realm and mean duly toobserve it” as quoted in D.K. Carrol, Handbook for Judges (1961) at 29.

14 R.A. Samek,“A Case for Social Law Reform” (1977), 55 Can. Bar Rev. 409at 411.

15 See for example, Canadian Bar Foundation, Report of the Canadian BarAssociation Committee on the Independence of the Judiciary in Canada (1985) at 36:“Competence in the discharge of judicial duties is an important factor in thepublic’s support of an independent judiciary.”; see generally, M.L. Friedland,A Place Apart: Judicial Independence and Accountability in Canada (1995) at 167 ff.; see also chapter 5,“Equality”; the current goal recommended by theNational Judicial Institute is a minimum of 10 days of continuing educationper year for each judge although workload does not always allow this goal to be achieved.

Adjudicative Duties

7. Diligence in the performance of adjudicative duties includesstriving for impartial and even-handed application of the law,thoroughness, decisiveness, promptness and the prevention ofabuse of the process and improper treatment of witnesses.Whilethese are all qualities and skills a judge needs, the variety of casesand the particular conduct of counsel and parties require a judgeconducting a hearing to emphasize one or more, sometimes atthe expense of some of the others, in order to achieve the properbalance. Striking this balance may be particularly challengingwhen one party is represented by a lawyer and another is not.While doing whatever is possible to prevent unfair disadvantageto the unrepresented party, the judge must be careful to preservehis or her impartiality.

8. The obligation to be patient and treat all before the court withcourtesy does not relieve the judge of the equally important dutyto be decisive and prompt in the disposition of judicial business.The ultimate test of whether the judge has successfully combinedthese ingredients into the conduct of the matters before the courtis whether the matter has not only been dealt with fairly but in afashion that is seen to be fair.16 These issues are addressed in the“Impartiality” chapter, section B.

9. Generally speaking, a judge should perform all properly assignedjudicial duties, be punctual unless other judicial duties prevent itand be reasonably available to perform all assigned duties.

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16 See Brouillard v.The Queen, [1985] 1 S.C.R. 39 per Lamer, J. (as he then was)for the court at 48:“...although the judge may and must intervene for justiceto be done, he must none the less do so in such a way that justice is seen to bedone.” (emphasis in original).The court also cited with approval the discussionof this subject in G. Fauteux, Le livre du magistrat (1980) (hereafter “Livre”).

10. The proper preparation of judgments is frequently difficultand time consuming. However, the decision and reasons shouldbe produced by the judge as soon as reasonably possible, havingdue regard to the urgency of the matter and other special circum-stances. Special circumstances may include illness, the length orcomplexity of the case, an unusually heavy workload or otherfactors making it impossible to give judgment sooner. In 1985,the Canadian Judicial Council resolved that, in its view, reservedjudgments should be delivered within six months after hearings,except in special circumstances.17

11. It is, of course, often necessary for judges to make findings of credibility and to rule on the propriety of others’ conduct.However, judges should avoid making comments about personswho are not before the court unless it is necessary for the properdisposition of the case. For example, irrelevant or otherwiseunnecessary comments in judgments about a person’s conduct or motives ought to be avoided.18

Administrative and Other Out of Court Duties

12. Today, judicial duties include administrative and other out of court activities. Judges have important responsibilities, forexample, in case management and pre-trial conferences as well as on committees of the court.These are all judicial duties andshould be undertaken with diligence.

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17 Canadian Judicial Council Resolution September 1985; Legislation andRules of Court may establish times within which judgment is to be given:see for example Code of Civil Procedure (Qc), article 465; repeated inability to give timely judgment has been the basis of a number of complaints to theCanadian Judicial Council: see Canadian Judicial Council, Annual Report1992-93 at 14.

18 See Commentaries on Judicial Conduct (1991) (hereafter “Commentaries”) at 82-83; Shetreet at 294-5.

Contributions to the Administration of Justice Generally

13. Judges are uniquely placed to make a variety of contributionsto the administration of justice. Judges, to the extent that timepermits and subject to the limitations imposed by judicial office,may contribute to the administration of justice by, for example,taking part in continuing legal education programs for lawyersand judges and in activities to make the law and the legal processmore understandable and accessible to the public.These activitiesare discussed in the “Impartiality” chapter, particularly sections Band C.

14. It is a delicate question whether and in what circumstances a judge should report, or cause to be reported, a lawyer to thelawyer’s professional governing body.Taking such action mayaffect the ability of the judge to continue in the proceeding inwhich that lawyer is appearing, given that the judge’s view of thelawyer’s conduct may give rise to a reasonable apprehension ofbias against the lawyer or the lawyer’s client. On the other hand,a judge is in a special position to observe lawyers’ conduct beforethe court. Putting aside any issue of contempt, generally a judgeshould take, or cause to be taken, appropriate action where thejudge has clear and reliable evidence of serious misconduct orgross incompetence by a lawyer.The judge will have to weighcarefully whether the interests of justice require that he or she wait until the end of the proceeding or whether there arecircumstances which require earlier action even though thejudge, nonetheless, continues to preside.

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5. Equality

Statement:Judges should conduct themselves and proceedingsbefore them so as to assure equality according to law.

Principles:

1. Judges should carry out their duties with appropriateconsideration for all persons (for example, parties, witnesses,court personnel and judicial colleagues) without discrimination.

2. Judges should strive to be aware of and understand differencesarising from, for example, gender, race, religious conviction,culture, ethnic background, sexual orientation or disability.

3. Judges should avoid membership in any organization that they know currently practices any form of discrimination thatcontravenes the law.

4. Judges, in the course of proceedings before them, shoulddisassociate themselves from and disapprove of clearly irrelevantcomments or conduct by court staff, counsel or any other personsubject to the judge’s direction which are sexist, racist or otherwisedemonstrate discrimination on grounds prohibited by law.

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Commentary:

1. The Constitution and a variety of statutes enshrine a strongcommitment to equality before and under the law and equalprotection and benefit of the law without discrimination.This is not a commitment to identical treatment but rather “...to theequal worth and human dignity of all persons” and “...a desire to rectify and prevent discrimination against particular groupssuffering social, political and legal disadvantage in our society.”19

Moreover, Canadian law recognizes that discrimination isconcerned not only with intent, but with effects.20 Quite apartfrom explicit constitutional and statutory guarantees, fair andequal treatment has long been regarded as an essential attribute ofjustice.While its demands in particular situations are sometimesfar from self evident, the law’s strong societal commitment placesconcern for equality at the core of justice according to law.

2. Equality according to law is not only fundamental to justice,but is strongly linked to judicial impartiality.A judge who, forexample, reaches a correct result but engages in stereotyping doesso at the expense of the judge’s impartiality, actual or perceived.

3. Judges should not be influenced by attitudes based on stereotype,myth or prejudice.They should, therefore, make every effort torecognize, demonstrate sensitivity to and correct such attitudes.

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19 Eldridge v. British Columbia (Attorney General), [1997] 3 S.C.R. 624 perLaForest, J. for the court at 667.

20 Ibid. at 670-671.

4. As is discussed in more detail in the “Impartiality” chapter,judges should strive to ensure that their conduct is such that any reasonable, fair minded and informed member of the publicwould justifiably have confidence in the impartiality of the judge.Judges should avoid comments, expressions, gestures or behaviourwhich reasonably may be interpreted as showing insensitivity toor disrespect for anyone. Examples include irrelevant commentsbased on racial, cultural, sexual or other stereotypes and otherconduct implying that persons before the court will not beafforded equal consideration and respect.

Inappropriate conduct may arise from a judge being unfamiliarwith cultural, racial or other traditions or failing to realize thatcertain conduct is hurtful to others. Judges therefore shouldattempt by appropriate means to remain informed aboutchanging attitudes and values and to take advantage of suitableeducational opportunities (which ought to be made reasonablyavailable) that will assist them to be and appear to be impartial.In doing this, however, it is also necessary to take care that theseefforts enhance and do not detract from judges’ perceivedimpartiality. All forms or vehicles of education are not necessarilyappropriate for judges given the demands of independence andimpartiality. Care must be taken that exaggerated or unfoundedconcern in this regard does not undermine efforts to enhancegood judging.

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Principle 4 deals with the role of the presiding judge in addressingclearly irrelevant comments which are sexist or racist or othersuch inappropriate conduct in proceedings before them.This does not require that proper advocacy or admissible testimony be curtailed where, for example, matters of gender, race or othersimilar factors are properly before the court.This advice isconsistent with the judge’s general duty to listen fairly but, whennecessary, to assert firm control over the proceeding and to actwith appropriate firmness to maintain an atmosphere of dignity,equality and order in the courtroom. Principle 4 certainly doesnot counsel perfection. Further, applying it may sometimes be a formidable challenge for the judge.The adversarial system gives the parties and their counsel considerable leeway and therelevance and importance of evidence may be difficult to assessaccurately as it is being presented.The judge should always do her or his best to strike the right balance.The fact that, whenreconsidered later with the benefit of hindsight and theopportunity for further reflection, the situation might have beenhandled differently is not, of itself, any indication that the judgefailed to deal with inappropriate conduct during the proceeding.

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6. Impartiality

Statement: Judges must be and should appear to be impartialwith respect to their decisions and decision making.

Principles:

A. General

1. Judges should strive to ensure that their conduct, both in and out of court, maintains and enhances confidence in theirimpartiality and that of the judiciary.

2. Judges should as much as reasonably possible conduct theirpersonal and business affairs so as to minimize the occasions onwhich it will be necessary to be disqualified from hearing cases.

3. The appearance of impartiality is to be assessed from theperspective of a reasonable, fair minded and informed person.

B. Judicial Demeanour

1. While acting decisively, maintaining firm control of the processand ensuring expedition, judges should treat everyone before thecourt with appropriate courtesy.

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C. Civic and Charitable Activity

1. Judges are free to participate in civic, charitable and religiousactivities subject to the following considerations:

(a) Judges should avoid any activity or association thatcould reflect adversely on their impartiality or interferewith the performance of judicial duties.

(b) Judges should not solicit funds (except from judicialcolleagues or for appropriate judicial purposes) or lendthe prestige of judicial office to such solicitations.

(c) Judges should avoid involvement in causes ororganizations that are likely to be engaged in litigation.

(d) Judges should not give legal or investment advice.

D. Political Activity

1. Judges should refrain from conduct such as membership ingroups or organizations or participation in public discussionwhich, in the mind of a reasonable, fair minded and informedperson, would undermine confidence in a judge’s impartialitywith respect to issues that could come before the courts.

2. All partisan political activity must cease upon appointment.Judges should refrain from conduct that, in the mind of areasonable, fair minded and informed person, could give rise tothe appearance that the judge is engaged in political activity.

3. Judges should refrain from:

(a) membership in political parties and political fundraising;

(b) attendance at political gatherings and political fundraising events;

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(c) contributing to political parties or campaigns;

(d) taking part publicly in controversial political discussionsexcept in respect of matters directly affecting the operationof the courts, the independence of the judiciary or funda-mental aspects of the administration of justice;

(e) signing petitions to influence a political decision.

4. Although members of a judge’s family have every right to bepolitically active, judges should recognize that such activities ofclose family members may, even if erroneously, adversely affectthe public perception of a judge’s impartiality. In any case beforethe court in which there could reasonably be such a perception,the judge should not sit.

E. Conflicts of Interest

1. Judges should disqualify themselves in any case in which theybelieve they will be unable to judge impartially.

2. Judges should disqualify themselves in any case in which theybelieve that a reasonable, fair minded and informed person wouldhave a reasoned suspicion of conflict between a judge’s personalinterest (or that of a judge’s immediate family or close friends orassociates) and a judge’s duty.

3. Disqualification is not appropriate if: (a) the matter giving riseto the perception of a possibility of conflict is trifling or wouldnot support a plausible argument in favour of disqualification,or (b) no other tribunal can be constituted to deal with the caseor, because of urgent circumstances, failure to act could lead to a miscarriage of justice.

29

21 Peter H. Russell, The Judiciary in Canada:The Third Branch of Government(1987) (hereafter “Russell”).

22 [1995] 4 S.C.R. 267 at 296-299.23 Ibid.

Commentary:

A. General

A.1 From at least the time of John Locke in the late seventeenthcentury, adjudication by impartial and independent judges hasbeen recognized as an essential component of our society.21

Impartiality is the fundamental qualification of a judge and thecore attribute of the judiciary.The Statement and Principles donot and are not intended to deal with the law relating to judicialdisqualification or recusation.

A.2 While judicial impartiality and independence are distinctconcepts, they are closely related.This relationship was exploredrecently by Gonthier, J. on behalf of the majority of the SupremeCourt of Canada in Ruffo v. Conseil de la Magistrature.22 The courtnoted that the right to be tried by an independent and impartialtribunal is an integral part of the principles of fundamental justiceprotected by s.7 of the Canadian Charter23 and reaffirmed thefollowing statement by Le Dain, J. in R. v.Valente:

Although there is obviously a close relationship betweenindependence and impartiality, they are never the lessseparate and distinct values and requirements. Impartialityrefers to a state of mind or attitude of the tribunal inrelation to the issues and the parties in a particular case.The word “impartial”...connotes absence of bias, actualor perceived

. . .

30

Both independence and impartiality are fundamental, notonly to the capacity to do justice in a particular case but also to individual and public confidence in the administrationof justice.Without that confidence the system cannotcommand the respect and acceptance that are essential to itseffective operation. It is, therefore, important that a tribunalshould be perceived as independent, as well as impartial...24

Lamer C.J.C. put it this way in R. v. Lippé:

The overall objective of guaranteeing judicialindependence is to ensure a reasonable perception ofimpartiality; judicial independence is but a “means” tothis “end.” If judges could be perceived as “impartial”without judicial “independence” the requirement of“independence” would be unnecessary. However, judicialindependence is critical to the public’s perception ofimpartiality. Independence is the cornerstone, a necessaryprerequisite for judicial impartiality.25

A.3 Impartiality is not only concerned with perception,but more fundamentally with the actual absence of bias andprejudgment.This dual aspect of impartiality is captured in theoften repeated words that justice must not only be done, butmanifestly be seen to have been done.As de Grandpre, J. put it inCommittee for Justice and Liberty v. National Energy Board,26 the testis whether “an informed person, viewing the matter realisticallyand practically — and having thought the matter through —”would apprehend a lack of impartiality in the decision maker.Whether there is a reasonable apprehension of bias is to beassessed from the point of view of a reasonable, fair minded andinformed person.

31

24 [1985] 2 S.C.R. 673 at 685 and 689.25 [1991] 2 S.C.R. 114 at 139.26 [1978] 1 S.C.R. 369, most recently endorsed in R.D.S. v.The Queen, [1997]

3 S.C.R. 484 per Cory, J. at 530 and per L’Heureux-Dubé and McLachlin, JJ.at 502.

A.4 “True impartiality does not require that the judge have nosympathies or opinions; it requires that the judge nevertheless be free to entertain and act upon different points of view with an open mind.”27 The judge’s fundamental obligation is to striveto be and to appear to be as impartial as is possible.This is not a counsel of perfection. Rather it underlines the fundamentalnature of the obligation of impartiality which also extends tominimizing any reasonable apprehension of bias.

A.5 A reasonable perception that a judge lacks impartiality isdamaging to the judge, the judiciary as a whole and the goodadministration of justice. Judges should, therefore, avoid deliberateuse of words or conduct, in and out of court, that could reasonablygive rise to a perception of an absence of impartiality.28 Every-thing from his or her associations or business interests to remarkswhich the judge may consider to be “harmless banter,” maydiminish the judge’s perceived impartiality.29

A.6 The expectations of litigants may be very high. Some will be quick to perceive bias quite unjustifiably when a decision isnot in their favour.Therefore every effort should be made toensure that reasonable grounds for such a perception are avoidedor minimized. On the other hand, judges have an obligation totreat all parties fairly and evenhandedly; those litigants whoperceive bias where no reasonable, fair minded and informedperson would find it are not entitled to different or specialtreatment for that reason. Moreover, as discussed below, the judgealso has the obligation to ensure that proceedings are conductedin an orderly and efficient manner.This may well require anappropriate degree of firmness.

32

27 In R.D.S. v.The Queen, supra, note 26, at 504, L’Heureux-Dubé andMcLachlin, JJ. (Gonthier and LaForest, JJ., concurring) cited this passage from page 12 of Commentaries with approval.

28 American Bar Association, Model Code of Judicial Conduct (1990)(hereafter “ABA Model Code (1990)”), Commentary to Canon 3B.

29 Canadian Judicial Council Annual Report 1992-93 at 16.

It is helpful to address the question of impartiality under morespecific headings.

B. Judicial Demeanour

B.1 Litigants and others scrutinize judges very closely for anyindication of unfairness. Unjustified reprimands of counsel,insulting and improper remarks about litigants and witnesses,statements evidencing prejudgment and intemperate andimpatient behaviour may destroy the appearance of impartiality.On the other hand, judges are obliged to ensure that proceedingsare conducted in an orderly and efficient manner and that thecourt’s process is not abused.An appropriate measure of firmnessis necessary to achieve this end.A fine balance is to be drawn byjudges who are expected both to conduct the process effectivelyand avoid creating in the mind of a reasonable, fair minded andinformed person any impression of a lack of impartiality.Theseissues are more fully discussed in chapters 4 and 5,“Diligence”and “Equality.” It bears repeating, however, that any action which,in the mind of a reasonable, fair minded and informed personwho has considered the matter, would give rise to reasonedsuspicion of a lack of impartiality must be avoided.When suchimpressions are created, they affect not only the litigants beforethe court but public confidence in the judiciary generally.30

C. Civic and Charitable Activity

C.1 A judge is appointed to serve the public. Many personsappointed to the bench have been and wish to continue to be active in other forms of public service.This is good for thecommunity and for the judge, but carries certain risks. For thatreason, it is important to address the question of the limits thatjudicial appointment places upon the judge’s community activities.

33

30 See chapter 4,“Diligence” and chapter 5,“Equality.”

C.2 The judge administers the law on behalf of the communityand therefore unnecessary isolation from the community does notpromote wise or just judgments.The Right Honourable GeraldFauteux put the matter succinctly and eloquently in Le livre dumagistrat31 (translation):

[there is no intention] to place the judiciary in an ivorytower and to require it to cut off all relationship withorganizations which serve society. Judges are not expectedto live on the fringe of society of which they are animportant part.To do so would be contrary to the effectiveexercise of judicial power which requires exactly theopposite approach.

C.3 The precise constraints under which judges should conductthemselves as regards civic and charitable activity are controversialinside and outside the judiciary.This is not surprising given thatthe question involves balancing competing considerations. Onone hand, there are the beneficial aspects, both for the communityand the judiciary, of the judge being active in other forms ofpublic service.This needs to be assessed in light of the expectationsand circumstances of the particular community. On the otherhand, the judge’s involvement may, in some cases, jeopardize theperception of impartiality or lead to an undue number of recusals.If this is the case, the judge should (unless the principle of necessity,discussed in section E.17, is implicated) avoid the activity.

C.4 The Code of Conduct for United States Judges applicable to thefederally appointed judiciary in the United States, while notcompletely appropriate for Canadian adoption, provides a usefulstarting point:

34

31 Livre at 17.

Civic and Charitable Activities. A judge may participate incivic and charitable activities that do not reflect adverselyupon the judge’s impartiality or interfere with the perfor-mance of judicial duties.A judge may serve as an officer,director, trustee, or non-legal advisor of an educational,religious, charitable, fraternal, or civic organization notconducted for the economic or political advantage of itsmembers, subject to the following limitations:

(1) A judge should not serve if it is likely that theorganization will be engaged in proceedings that wouldordinarily come before the judge or will be regularlyengaged in adversary proceedings in any court.

(2) A judge should not solicit funds for any educational,religious, charitable, fraternal, or civic organization, or useor permit the use of the prestige of the judicial office forthat purpose, but the judge may be listed as an officer,director, or trustee of such an organization.A judge shouldnot personally participate in membership solicitation ifthe solicitation might reasonably be perceived as coerciveor is essentially a fund-raising mechanism.

(3) A judge should not give investment advice to such an organization, but may serve on its board of directorsor trustees even though it has the responsibility forapproving investment decisions.

C.5 These provisions seek to strike a reasonable balance between community involvement and the preservation of judicial impartiality and, although not specifically adopted inthese Principles, nonetheless may provide helpful guidance.

35

C.6 Subject to the discussion that follows, judges are at liberty to be members and directors of civic and charitable organizationsand, of course, to exercise freedom of religion. In general,however, a judge should not allow the prestige of judicial office to be used in aid of fund raising for particular causes, howeverworthy.This principle suggests that judges (apart from requests to judicial colleagues) should not personally solicit funds or lend their names to financial campaigns. Commentaries on JudicialConduct notes that when a judge is directly involved in fundraising there may be a temptation for lawyers or litigants who arecanvassed to try to curry favour with the judge by contributing.Moreover, such solicitation identifies the judge with the objectsof the organization.32 However, the simple appearance of thejudge’s name as a director (or similar position) on the organization’sgeneral letterhead is not inappropriate.

C.7 Judges must carefully assess whether to serve on Boards ofDirectors of organizations other than those serving the profes-sional or educational requirements of judges. It is inappropriate(and prohibited) for a judge to serve on the Board of Directors of a commercial enterprise.33

C.8 What is the position with respect to volunteer service on boards of community, charitable, religious or educationalorganizations? Many institutions solicit and/or receive moneyfrom government. Except for funds required for the properadministration of justice, it is not appropriate for the judge to bedirectly involved in soliciting funds from government. Boards of Directors are responsible for the conduct of the organization.The organization may become involved in disputes with staff or others, sue or be sued, breach government regulations of allsorts or otherwise be implicated in matters of public controversy.

36

32 Commentaries at 18-19.33 Judges Act, R.S.C. 1985, c.J-1, s.55. (See note 12.)

Any of these situations could be embarrassing for the judge or hisor her colleagues and might give rise to reasonable apprehensionof a lack of impartiality with respect to certain issues that mightarise for judicial consideration. Fellow directors may seek and relyupon the judge’s advice on legal matters. But it is inappropriatefor the judge to give such advice.The decision to serve must be made after carefully weighing these risks in the particularcircumstances.

C.9 Several Canadian judges have served as chancellors ofuniversities or dioceses. Others have served on the boards ofschools, hospitals or charitable foundations. Such participationmay now present risks that did not appear evident in the past.These risks must be carefully weighed. Universities, churches andcharitable and service organizations are now involved in litigationand matters of public controversy in ways that were virtuallyunheard of even in the very recent past.A judge serving as achancellor of a university or a diocese or as a board member may be placed in an awkward position if the organization shouldbecome involved in litigation or matters of public controversy.

C.10 Requests for letters of reference may be difficult for ajudge.There are certainly factors a judge will want to considerbefore agreeing to provide such a letter. One is that the judgeshould avoid being seen as using the prestige of judicial office to advance a person’s private interests.The judge must also avoidgiving the impression that certain persons stand in a particularposition of influence or favour with the judge.These factorscombine to suggest that the judge should agree to give a referenceonly where it is clear, first, that it is the judge’s knowledge of theindividual that is called for and not simply the status of the judgeand, second, where the judge has an important perspective aboutthe individual to contribute such that it would be unfair to theindividual and the selection process were the judge to refuse.

37

Commentaries reports that a large majority of the judges whoresponded to the questionnaire leading to the production of thattext approved a judge’s giving character references. Commentariesalso noted however that the practices of judges vary and that anumber of respondents professed some reluctance.34 While thismatter is one on which judges differ, the two part test set out in the preceding paragraph is offered as an approach that strikesan acceptable balance between the desirability of obtaining the benefit of the judge’s views while minimizing the risk ofundermining the judge’s neutrality.

Commentaries states that judges may properly assist judicialappointment advisory committees on a strictly confidential basis.More generally, the commentary on the ABA Model Code (1990)addresses the matter as follows:

Although a judge should be sensitive to possible abuse of the prestige of office, a judge may provide a letter orrecommendation based on the judge’s personal knowledge.A judge also may permit the use of the judge’s name as a reference, and respond to a request for a personalrecommendation when solicited by a selection ofauthorities, such as a prospective employer, JudicialSelection Committee or Law School Admissions Office.35

Once again, it is suggested that the two part test proposed forletters of reference generally strikes the right balance in the specificcontext of judicial appointments even though the result is asomewhat more restrictive approach than that of ABA ModelCode (1990).

38

34 Commentaries at 33-35.35 ABA Model Code (1990), Commentary to Canon 2B.

D. Political Activity

D.1 This section deals with out of court activities of judges. Inparticular, it addresses political activity and other conduct such asmemberships in groups or organizations or participation in publicdebate and comment which, from the perspective of a reasonable,fair minded and informed person could undermine a judge’simpartiality as regards issues that could come before the courts.

D.2 Commentators are unanimous that “all partisan politicalactivity and association must cease absolutely and unequivocallywith the assumption of judicial office.”36 Two considerationssupport this rule. Impartiality, actual and perceived, is essential tothe exercise of the judicial function. Partisan political activity orout of court statements concerning issues of public controversyby a judge undermine impartiality.They are also likely to lead topublic confusion about the nature of the relationship between thejudiciary on the one hand and the executive and legislative brancheson the other. Partisan actions and statements by definition involvea judge in publicly choosing one side of a debate over another.The perception of partiality will be reinforced if, as is almostinevitable, the judge’s activities attract criticism and/or rebuttal.This in turn tends to undermine judicial independence.37 Inshort, a judge who uses the privileged platform of judicial officeto enter the political arena puts at risk public confidence in theimpartiality and the independence of the judiciary.

39

36 Commentaries at 9; see also Livre at 28; Shaman at 360 ff; Wilson at 7; Judges inCanada (as in the U.S. and England) are entitled to vote and there is nothingunethical in doing so.

37 Russell at 87-88.

D.3 Principles D.3(a) and (b) are widely accepted examples of overt political activity in which judges should not engage after appointment.38 Judges should also consider whether mereattendance at certain public gatherings might reasonably give riseto a perception of ongoing political involvement or reasonablyput in question the judge’s impartiality on an issue that couldcome before the court.

D.4 Principle D.3(c) counsels against making contributions to political parties.The rationale of this advice is that the judgeshould not be identified with the political process or, subject toprinciple D.3(d), with specific positions on matters of politicalcontroversy.The Nova Scotia Judicial Council was confrontedwith a complaint that a judge had contributed to a politicalparty’s fund to alleviate the financial distress of its former leaderwho was a friend and classmate of the judge.The judge had alsocontributed to the political campaigns of close relatives and madethree other undesignated contributions to the same politicalparty.The Nova Scotia Judicial Council cautioned the judge,reasoning that:

The public perception, we believe, is that where a judgemakes a financial contribution to such highly placedpolitical persons, as the three who benefitted from thegifts of this judge, it is impossible to separate them fromthe political organizations of which they are a part...Since, in our opinion, donations of money are but one way of participating in a political organization, themaking of them is deemed to be political activity inwhich a judge should not engage.39

40

38 See e.g. Wilson at 7-9; Thomas at 156.39 Nova Scotia Judicial Council, Report Concerning the Conduct of His Honour

Paul S. Niedermeyer, June 17, 1991. (Hereafter “Niedermeyer Ruling.”)

D.5 The application of Principle D.3(d), which counselsavoidance of public participation in controversial politicaldiscussions, is more open to debate and problems of applicationthan the other principles in this section. Judges on appointmentdo not surrender all of the rights to freedom of expression enjoyedby everyone else in Canada. But, the office of judge imposesrestraints that are necessary to maintain public confidence in the impartiality and independence of the judiciary. In defining the appropriate degree of involvement of the judiciary in publicdebate, there are two fundamental considerations.The first iswhether the judge’s involvement could reasonably undermineconfidence in his or her impartiality.The second is whether suchinvolvement may unnecessarily expose the judge to politicalattack or be inconsistent with the dignity of judicial office. If eitheris the case the judge should avoid such involvement.

D.6 Principle D.3(d) recognizes that, while restraint is thewatchword, there are limited circumstances in which a judge mayproperly speak out about a matter that is politically controversial,namely,when the matter directly affects the operation of the courts,the independence of the judiciary (which may include judicialsalaries and benefits), fundamental aspects of the administration ofjustice, or the personal integrity of the judge. Even with respectto these matters, however, a judge should act with great restraint.Judges must remember that their public comments may be takenas reflective of the views of the judiciary; it is difficult for a judgeto express opinions that will be taken as purely personal and notthose of the judiciary generally.There are usually alternatives topublic discussion. For example, the chief justice of the court mayraise the matter formally with the appropriate official or officials.Except for statutory and constitutional duties and matters affectingthe operation of the courts or the proper administration of justice,chief justices are in no different position than their colleagues.

41

The Principle suggests a somewhat larger sphere for suchinterventions than that described in the 1982 comments of theCanadian Judicial Council in the Berger matter. In dealing withthat complaint, the Council stated that judges should not speakon controversial political matters that do not directly affect theoperation of the courts.The suggestion here is that, having regardto judges’ special knowledge and experience in matters relating to the administration of justice and their obligation to preservejudicial independence, the proper ambit for their out of courtinterventions may be somewhat wider in appropriate cases.Wherethe terms of reference require, judges serving on Commissions of Inquiry may exercise greater latitude in commenting on issuesrelevant to the inquiry. Judges serving in this way, however, mustcontinue to bear in mind that they are judges even while servingfor the time being as commissioners.

D.7 Nothing in these Principles prevents or indeed discouragesjudicial participation in law reform or other scholarly or educationalactivities of a nonpartisan nature directed to the improvement ofthe law and the administration of justice. Judges seconded to lawreform commissions may exercise greater latitude with respect tomatters under consideration by the Commission.The Commentaryto the ABA Model Code (1990) indicates that “...[a]s a judicialofficer and person specially learned in the law, a judge is in a uniqueposition to contribute to the improvement of the law, the legalsystem and administration of justice... Judges may participate inefforts to promote the fair administration of justice, the independenceof the judiciary and the integrity of the legal profession.”40

However, when engaging in such activities, the judge must not be seen as “lobbying” government or as indicating how he or shewould rule if particular situations were to come before the judgein court.This, of course, does not prevent judges from makingrepresentations to government concerning judicial independenceor, through the appropriate mechanisms, with respect to salaries

42

40 ABA Model Code (1990), Commentary to Canon 4B.

and benefits.Discussion of the law for educational purposes or pointing out weaknesses in the law in appropriate settings is in no way discouraged. For example, in certain specialcircumstances, judicial commentary on draft legislation may be helpful and appropriate, so long as the judge avoids givinginformal interpretations or opinions on constitutionality.41

Normally, judicial commentary on proposed legislation or onother questions of government policy should relate to practicalimplications or legislative drafting and should avoid issues ofpolitical controversy. In general, such judicial commentary shouldbe made as part of a collective or institutionalized effort by thejudiciary, not that of an individual judge.

D.8 Principle D.3(e) suggests that judges should not sign petitionsto influence political decisions. Petitions are an example of asituation in which a judge is likely to be perceived as supporting a particular point of view or as lobbying, albeit rather passively,to bring about change.As the Nova Scotia Judicial Council put it,the requirement of complete severance from all political activitiesmeans that “a judge shall not try to influence politicians or politicalissues.”42 This is precisely the purpose of petitions.

D.9 The duties of chief justices and, in some cases, those of otherjudges having administrative responsibilities will lead to contactand interaction with government officials, particularly the attorneysgeneral, the deputy attorneys general and court services officials.This is necessary and appropriate, provided the occasions of suchinteractions are not partisan in nature and the subjects discussedrelate to the administration of justice and the courts and not toindividual cases. Judges, including chief justices, should take carethat they are not perceived as being advisors to those holdingpolitical office or to members of the executive.

43

41 The Canadian Judicial Council, for example, struck a special committeewhich reviewed proposals for a new General Part of the Criminal Code andfacilitated meetings between senior government officials and judges to discusschild support guidelines.

42 Niedermeyer Ruling at 12.

E. Conflicts of Interest

E.1 Judges should organize their personal and business affairs to minimize the potential for conflict with their judicial duties.Notwithstanding the judge’s best efforts, situations will arise inwhich the appearance of justice requires the judge to disqualifyhimself or herself.The issues to be addressed in this section are:(1) what constitutes a conflict of interest? (2) in what circumstancesshould a judge disclose circumstances which may constitute a conflictof interest? (3) in what circumstances will consent of the partiesobviate the need for the judge to be disqualified? and (4) in whatcircumstances will it be necessary for a judge to preside even thoughthere is an apparent conflict of interest? Each will be addressed in turn.

E.2 What Constitutes a Conflict of Interest?As Perell puts it,“A common or unifying theme for the variousclasses of conflicts of interest is the theme of divided loyalties andduties.”43 The potential for conflict of interest arises when thepersonal interest of the judge (or of those close to him or her)conflicts with the judge’s duty to adjudicate impartially. Judicialimpartiality is concerned both with impartiality in fact andimpartiality in the perception of a reasonable, fair minded andinformed person. In judicial matters, the test for conflict of interestmust include both actual conflicts between the judge’s self interest and the duty of impartial adjudication and circumstances in which a reasonable fair minded and informed person wouldreasonably apprehend a conflict.

E.3 A number of texts and commentaries offer guidance tojudges on this subject.The Hon. J.O.Wilson in A Book for Judges,for example, says a judge’s disqualification would be justified by a pecuniary interest in the outcome; a close family, personal orprofessional relationship with a litigant, counsel or witness; or thejudge having expressed views evidencing bias regarding a litigant.44

44

43 Paul M. Perell, Conflicts of Interest in the Legal Profession (1995) at 5.44 Wilson at 23.

E.4 The Code of Civil Procedure of Quebec is unique in Canada in offering authoritative guidance.The subject of disqualificationis expressly addressed in articles 234 and 235. Included among the grounds for disqualification are, for example, the judge beingrelated to one of the parties within the degree of first cousin, havingacted for one of the parties, having an interest in the outcome, etc.45

E.5 As elsewhere in this area, the concern is with reasonableperception, as well as actual conflict of interest. In general, a judge should not preside over a case in which he or she has a financial or property interest that could be affected by itsoutcome or in which the judge’s interest would give rise in a reasonable, fair minded and informed person, to reasonedsuspicion that the judge would not act impartially.46 This generalrule applies whether the interest is itself the subject matter of thecontroversy or where the outcome of the case could substantiallyaffect the value of any interest or property owned by the judge,the judge’s family or close associates. It will not apply where thejudge’s interest is limited to one shared by citizens generally.

E.6 This broadly formulated rule cannot be strictly applied,however. Owning an insurance policy, having a bank account,using a credit card or owning shares in a corporation through a mutual fund would not, in normal circumstances give rise toconflict or the appearance of conflict unless the outcome of theproceedings before the judge could substantially affect such holdings.Nor should small holdings, such as those contemplated by the de minimis provisions of ABA Model Code (1990) give rise to any reasonable question concerning the judge’s impartiality.47

However, if the holding is more substantial, the judge should notsit, subject to considerations of necessity discussed in section E.17.

45

45 Code of Civil Procedure, art. 234-235.46 Shaman at 136; the language is modelled on that of Rand, J. in Szilard v. Szasz,

[1965] S.C.R. 3 at 4.47 See note 28; de minimis is defined as being “an insignificant interest that could

not raise a reasonable question as to the judge’s impartiality.”

E.7 Should interests of members of the judge’s family, closefriends or associates be considered as giving rise to a perceptionof conflict of interest? As a matter of broad general principle, onecan imagine circumstances in which the interests of the judge’sfamily, close friends or associates in matters before the judge couldgive rise to a reasonable apprehension of conflicting interest andduty.To attempt to define these matters with greater precision,however, is another matter.Article 234(1) and (9) of the Code ofCivil Procedure define precisely the degree of family relationshipwith parties or counsel which requires recusal.Article 235 refersto the personal interest of the judge or “his consort” as justifyingrecusal. ABA Model Code (1990) defines the degree of familyrelationship which should lead to disqualification.48

E.8 While these approaches introduce much needed clarity, itmay come at the expense of attention to the general principlethat a judge (subject to the discussion in section E.17 below)should disqualify him or herself if aware of any interest orrelationship which, to a reasonable, fair minded and informedperson would give rise to reasoned suspicion of lack of impartiality.For the purposes of national principles of judicial ethics forCanada, the temptation to become more specific than this should be avoided.

46

48 See for example, Canon 3E(d):

(d) the judge or the judge’s spouse, or a person within the third degree ofrelationship to either of them, or the spouse of such a person:

(i) is a party to the proceeding, or an officer, director or trustee of a party;

(ii) is acting as a lawyer in the proceeding;

(iii) is known by the judge to have a more than de minimis interest that couldbe substantially affected by the outcome of the proceeding;

(iv) is to the judge’s knowledge likely to be a material witness in theproceeding.

“Third degree of relationship.”The following persons are relatives within thethird degree of relationship: great-grandparent, grandparent, parent, uncle,aunt, brother, sister, child, grandchild, great-grandchild, nephew or niece.

E.9 Personal insolvency and bankruptcy give rise to a variety of potential difficulties for judges.Whether, and if so in whatcircumstances, these difficulties will provide grounds for removalof a judge is not an issue that falls within the range of questionsaddressed by these Principles.As the Bankruptcy Act, section 175,recognizes, bankruptcy may occur by misfortune and withoutmisconduct. For instance, a judge could be held liable for adefalcation of a former law partner or for an accident involvingthe judge’s vehicle driven by his or her spouse or child. Havingregard to this fact, no general rule can, or should be formulated.

E.10 The judge who is in financial difficulty will have to beparticularly vigilant for conflicts of interest, both actual andperceived.There will be difficulties in the judge presiding overmatters involving any of his or her creditors or, perhaps, othermatters raising similar issues. Serious questions arise if any aspectof the judge’s financial difficulties becomes contentious. In thisevent, the possibility of the judge appearing before a judicialcolleague as a party or a witness would arise.The actual day-to-day impact of the financial difficulties on the judge’s ability toperform the job will obviously vary considerably depending onthe circumstances and the size of the jurisdiction. Circumstanceswhich might cause very minor inconvenience to a large courtmight nonetheless have a significant practical impact on a smallercourt. Once again, however, it seems impossible and unwise to try to deal with the scores of possibilities other than throughapplication of the general principle that, where a reasonable, fairminded and informed person would have a reasoned suspicionthat the judge will not be impartial, the judge should not sit. Incertain circumstances, the principles relating to diligence mightalso be relevant if the judge’s conflicts were so extensive that theyeffectively prevented the judge from carrying out his or her duties.A judge’s bankruptcy may raise many of these issues in acuteform.When judges become aware of financial or other similarcircumstances likely to affect public perception of their impartiality,they should draw them to the attention of their chief justices.

47

E.11 DisclosureThe absence in Canada of a general statutory requirement forfinancial disclosure does not resolve the ethical question of whena judge should disclose to the parties a matter which might beconsidered as giving rise to a potential conflict of interest.Theposition in England and Australia appears to be that the judgeshould disclose any interest or factor which might suggest thatthe judge should be disqualified.49 This approach, however, ispremised on the view that the disclosure is made with a view toseeking the consent of the parties for the judge to hear the case.

E.12 Whether there are circumstances in which the consent ofthe parties is essential to permit the judge to hear the case is thesubject of the next section. However, the issues of disclosure andconsent are not necessarily linked. For now, it can be concludedthat a judge should disclose on the record anything which mightsupport a plausible argument in favour of disqualification.

E.13 Consent of the PartiesCommentaries on Judicial Conduct acknowledges the practicaldifficulty of attempting to cure a concern about disqualificationby disclosure to and consent of the parties.The main concern is that such an approach puts counsel in an unfair position — asone respondent put it, to either consent or to risk being seen as a trouble maker.50

E.14 It is not suggested that consent of the parties would justify a judge continuing in a situation in which he or she felt thatdisqualification was the proper path.The issue of consent,therefore, arises only in those cases in which the judge believesthat there is an arguable point about disqualification but in whichthe judge believes, at the end of the day, a reasonable personwould not apprehend a lack of impartiality. Putting the matterthis way perhaps highlights the difficult position in which counsel

48

49 See for example, Shetreet at 305; Thomas at 53-55; Commentaries at 72;Wilson at 30-31.

50 Commentaries at 74.

is placed. By disclosing the matter and seeking consent to continue,the judge is in essence saying that no reasonable person shouldapprehend a lack of impartiality.Therefore, if counsel fails toconsent, counsel (or their clients) may appear to be taking anunreasonable position.A partial answer to this concern may be to adopt the English practice in which the judge is told that anobjection was made by one of the parties without being toldwhich side objected.51

E.15 The better approach is for the judge to make the decisionwithout inviting consent, perhaps in consultation with his or herchief justice or other colleague. If the judge concludes that noreasonable, fair minded and informed person, considering thematter, would have a reasoned suspicion of a lack of impartiality,the matter should proceed before the judge. If the conclusion isthe opposite, the judge should not sit.

E.16 The judge should make disclosure on the record and invitesubmissions from the parties in two situations.The first arises if the judge has any doubt about whether there are arguablegrounds for disqualification.The second is if an unexpected issuearises shortly before or during a proceeding.The judge’s requestfor submissions should emphasize that it is not counsel’s consentthat is being sought but assistance on the question of whetherarguable grounds exist for disqualification and whether, in thecircumstances, the doctrine of necessity applies.

E.17 NecessityExtraordinary circumstances may require departure from theapproaches discussed above.The principle of necessity holds that ajudge who would otherwise be disqualified may hear and decidea case where failure to do so could result in an injustice.Thismight arise where an adjournment or mistrial would work unduehardship or where there is no other judge reasonably availablewho would not be similarly disqualified.52

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51 See Shetreet at 305.52 See, for example, Wilson at 29; Shaman at 99-101 and Shetreet at 304.

E.18 Acting as ExecutorThere is a range of views as to whether a judge should serve as anexecutor. Shetreet describes the English practice in which judgesmay serve as executors of estates of friends or relatives, providedthere is no remuneration, the judge is not involved in the day-to-day administration of the estate and the required work does notinterfere with his or her judicial duties.53 In the United States,the ABA Model Code (1990) deals with this point as follows:

4E. Fiduciary Activities

(1) A judge shall not serve as executor, administrator orother personal representative, trustee, guardian, attorneyin fact or other fiduciary except for the estate, trust or person of a member of the judge’s family, and then only if such service will not interfere with the properperformance of judicial duties.

(2) A judge shall not serve if it is likely that the judge as a fiduciary will be engaged in proceedings that wouldordinarily come before the judge, or if the estate, trust or ward becomes involved in adversary proceedings inthe court on which the judge serves or one under itsappellate jurisdiction.

(3) The same restrictions on financial activities that applyto a judge personally also apply to the judge while actingin a fiduciary capacity.54

In Canada, A Book for Judges, Le livre du magistrat55 and Commentarieson Judicial Conduct56 agree that, as a general rule, the judge shouldnot act but that it is permissible to do so if the estate is of a

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53 Shetreet at 331.54 ABA Model Code (1990), Canon 4E.55 Livre at 24.56 Commentaries at 35-6.

relative or close friend and it appears to be simple and notcontentious. Should these predictions prove wrong, theseauthorities all advise the judge to retire from the executorship.

In summary, it is suggested that a sound approach to the questionis as follows:

1.As a general rule, a judge should not act as an executor.

2. It is not improper for a judge to so act if:

(a) he or she does so without fee;

(b) the estate is of a close friend or relative;

(c) it is unlikely to be contentious; and,

(d) performance of the obligations will not interfere with judicial duties.

3. Having embarked on the executorship, the judge should retirefrom it if the estate becomes contentious or if the executorshipinterferes with the performance of judicial duties.

E.19 Former ClientsJudges will face the issue of whether they should hear casesinvolving former clients, members of the judge’s former law firmor lawyers from the government department or legal aid office in which the judge practised before appointment.There are threemain factors to be considered. First, the judge should not deal withcases concerning which the judge actually has a conflict of interest,for example, as a result of having had confidential informationconcerning the matter prior to appointment. Second, circum-stances must be avoided in which a reasonable, fair minded andinformed person would have a reasoned suspicion that the judgeis not impartial.Third, the judge should not withdraw unnecessarilyas to do so adds to the burden of his or her colleagues andcontributes to delay in the courts.

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The following are some general guidelines which may be helpful:

(a) A judge who was in private practice should not sit on any case in which the judge or the judge’s former firm was directlyinvolved as either counsel of record or in any other capacitybefore the judge’s appointment.

(b) Where the judge practised for government or legal aid,guideline (a) cannot be applied strictly. One sensible approach is not to sit on cases commenced in the particular local officeprior to the judge’s appointment.

(c) With respect to the judge’s former law partners, or associatesand former clients, the traditional approach is to use a “coolingoff period,” often established by local tradition at 2, 3 or 5 yearsand in any event at least as long as there is any indebtednessbetween the firm and the judge and subject to guideline (a) above concerning former clients.

(d) With respect to friends or relatives who are lawyers, thegeneral rule relating to conflicts of interest applies, i.e., that the judge should not sit where a reasonable, fair minded andinformed person would have a reasoned suspicion that the judge would not be impartial.

Related issues, requiring similar approaches, may arise in relationto overtures to the judge while still on the bench for post-judicialemployment. Such overtures may come from law firms orprospective employers.There is a risk that the judge’s self-interestand duty would appear to conflict in the eyes of a reasonable,fair minded and informed person considering the matter. A judgeshould examine such overtures in this light. It should also beremembered that the conduct of former judges may affect publicperception of the judiciary.

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